Constitutional Fundamentalists

Constitutional Fundamentalists November 28, 2018

Right-wing columnist Marc A. Thiessen recently wrote an op/ed claiming that “liberal presidents tend to nominate judicial activists who legislate from the bench and shape the law to reach their preferred outcomes” (Concerning “Chief Justice is incorrect on both counts,” by Marc A. Thiessen, The Houston Chronicle, 11/26, p. A17). Further, “These liberal judges hold that the Constitution can be “interpreted to mean whatever they want it to mean.” Conservative justices, on the other hand, “follow our laws as written.” In other words, according to Thiessen, there is no such thing as a good-faith liberal reading of the Constitution.

It occurred to me that Thiessen, and many who call themselves “originalists” or “strict constructionists” approach the Constitution in much the same way that religious fundamentalists approach scripture. Fundamentalists are called “biblical literalists,” but I think that “biblical positivists” would be a better description. The logical positivists associated with the Vienna Circle famously held that “protocol statements”—statements allegedly reporting raw, basic, pre-theoretical experience—could serve as neutral adjudicators of competing theories. Such statements could therefore constitute objective checks on our theoretical commitments, confirming theories consistent with such statements, and disconfirming those that are not.

Similarly, fundamentalists hold that the plain, unvarnished meaning of Scripture can be invoked to authenticate some theological claims and discredit others. As they see it, their theology—and theirs alone—is biblical, that is, transparently reflects the clear dictates of scripture, while all other views distort the plain meaning of God’s Word for ideological ends. It inevitably follows from such views, that disagreement cannot be in good faith, cannot be an honest and rational difference of opinion, but must either be benighted or malevolent. This was precisely the view of the fundamentalists when, in the eighties, they took over the Southern Baptist Convention at all levels, and purged all moderates as heretics.

The problem is that fundamentalists, like the positivists, overlooked the extent to which experience (including the experience of reading a text) can be subjective, ideological, and theory-laden. Now I emphatically do not agree with Kuhn, Feyerabend, and other “postpositivists” that all observations are theory-laden to the extent that they cannot serve as objective constraints on theorizing. However, to ignore the possibility that our observations or readings might be conditioned by our prior convictions and commitments is to set yourself up as a sucker for circular reasoning. It becomes fatally easy to “see” in Scripture (or the Constitution) what you want to be there and then conclude that (mirabile dictu) the text 100% supports your ideological commitments. You compound your self-deception when you then claim that your reading is not a reading, and your interpretation is not an interpretation. No, you are simply telling it like it is, and all others are engaged in self-serving ideological distortion.

I do not hold that any text can be read in any way. Further, some texts really do not require much interpretation. A stop sign means “stop.” The warning on a cigarette pack that smoking causes lung cancer, is not to be taken as metaphor, simile, or satire. It means that smoking causes lung cancer. Seriously. On the other hand, complex documents written long ago in cultural and historical circumstances very different from ours always require interpretation. Such texts present a problem of underdetermination, in much the same way that scientific evidence often does. For instance, a few years back it was a lively debate among paleontologists whether T. Rex and other very large carnivorous dinosaurs were deadly active hunters or scavengers. The evidence did not decisively determine one answer or the other. Indeed, scientific debates become liveliest precisely when the evidence is indecisive.

The point is that, even in science, the evidence often constrains our theorizing without decisively determining the truth of a given theory. This condition is chronic in fields that require the interpretation of texts. Whereas all good-faith interpretations are constrained by the text, it is bad faith to say that your interpretation is the one that obviously gets it completely right. The difference between a reasonable person and a zealot comes down largely to the degree that one is willing to admit the rationality of alternate readings of facts or texts. This emphatically does not mean that we have to settle for a weak-kneed, wimpy relativism. No, you go with what seems right to you and argue for it with all your skill and passion. You simply see yourself as having a conversation with a reasonable and honest interlocutor, not as chastising a corrupt ideologue.

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